Repeal the USA Patriot Act --
Part III: Civil Rights Violations and Torture
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This is Part III of a six-part t r u t h o u t series on the USA Patriot Act. This Act, passed hastily and in a time of fear, affects all of us in some very basic and important ways.
Part III discusses the recent emergence of troubling evidence of violations of civil rights under the USA Patriot Act, and looks at the disturbing possibility of torture.
Repeal the USA Patriot Act
Part III: Civil Rights Violations and Torture
by Jennifer Van Bergen
t r u t h o u t | April 3, 2002
Yesterday, I noted how similar the Patriot Act is to the abhorrent 1798 Alien Act. I illustrated how both were enacted after attacks on Americans, and in times of fear and hysteria. I pointed out how the Alien & Sedition Acts failed to protect Americans and ended up causing extreme violations of American's civil rights. I remarked upon the long-term effects of these laws, the blowback of which ultimately contributed to the outbreak of The Civil War sixty years later. Finally, I closed by noting how the wheel of history turns, as the Supreme Court was able to put Bush into office on the basis of a now, long-accepted doctrine laid down in those earlier precarious times.
The wheel-of-history analogy reminds me of the lines W. S. Gilbert wrote a hundred years ago in the satirical operetta, "Trial by Jury:"
"The screw may twist and the rack may turn,
And men may bleed and men may burn...."
W.S. Gilbert's haunting words were written in the context of a fictive and farcical trial by jury, but they could be applied metaphorically just as well to the twists and turns of time and fate, to the repetitions and revolutions of history. Those who do not know history are doomed to repeat it. Democracy is a fragile thing.
But another point: one can also construe Gilbert's words literally. What is worrisome now, under the Patriot Act and the Administration's ensuing measures, is that our government might actually consider such things.
I mean, the screw and the rack. Torture.
Does the Bush Administration advocate torture? No. Not publicly, at least, although the obvious pleasure Bush has shown at applying the death penalty, and his response to one condemned woman's plea for clemency suggests he might. (His response was to mock her.)
Does John Ashcroft? Not yet. But, unbelievably, the idea has been bandied about in the press. (A CNN poll revealed that 45 percent of Americans would not object to torturing someone if it would provide information about terrorism.)
More importantly, the Patriot Act opens the door for exactly that type of abuse.
Indeed, evidence is already leaking out of cruel treatment toward detainees. A recent Amnesty International release states: "Reports of cruel treatment include prolonged solitary confinement; heavy shackling of detainees during visits ... and lack of adequate exercise."
According to the March 18th amended complaint in the case brought by the Center for National Security Studies to compel the Department of Justice to release information on detainees (CNSS v. DOJ): "There are also many reports about detainees being abused or treated improperly while in federal custody. Detainees have alleged that they have been beaten by guards. The Los Angeles Times reported that a Pakistani detainee was stripped and beaten in his cell by inmates while guards did nothing; that five Israelis were blindfolded during questioning, handcuffed in their cells and forced to take polygraph tests; and that a Saudi Arabian man "was deprived of a mattress, a blanket, a drinking cup and a clock to let him know when to recite his Muslim prayers."
This is the treatment afforded to detainees who are being held on routine visa violations, people who would not normally be detained at all. The complaint states: "Less than five of the 718 immigration charges detailed by the government relate to terrorism."
Americans should be outraged. This is a country of immigrants. This is a democracy, not a tyranny.
Some detainees have been held several months without being charged with any violation. Others report they continued to be held after bail had been granted and they were ready to meet it, according to Amnesty International (AI), which has joined the suit against the DOJ.
These conditions are in direct contravention of international standards, according to AI. AI has also called for a full inquiry into the conditions in the federal Metropolitan Detention Center in New York, to which AI was denied access, where some 40 detainees are reported to be confined in solitary cells for 23 hours or more a day.
The Seven-Day Rule
Under the USA Patriot Act, once the Attorney General has "certified" that an alien is a terrorist or a threat to national security, the Immigration and Naturalization Service (INS) may detain him without indictment for seven days before it brings any immigration or criminal charges.
This sounds very much like the Prevention of Terrorism Act that was in place in Great Britain in the 1970s under which IRA suspects could be held and interrogated for seven days without indictment or counsel. The 1993 film, "In the Name of the Father," starring Daniel Day-Lewis and Emma Thompson, showed just how brutally and unfairly such laws can be used. "The Guildford Four" were arrested, detained without counsel, beaten, interrogated under extremely coercive conditions, then, of course, convicted and imprisoned. They continued to be imprisoned even after a convicted IRA member informed the authorities the four were innocent. After serving fifteen years in prison, the four were cleared of all charges and released.
This is exactly the type of thing that seems already to be occurring under the Patriot Act.
Although it is extremely difficult to obtain information about those detained, several attorneys testified before the Senate of such abuses. One: "Gerald H. Goldstein testified before the Senate Judiciary Committee that his client had been arrested on September 12 and held incommunicado from his lawyers until September 19, despite both his and his lawyers' repeated requests for access to each other. During that time, he was repeatedly interrogated despite his requests to speak with counsel."
The Attorney General can essentially throw anyone in jail he wants. All he has to do is point his finger at someone and say the magic words, "terrorist," or "threat to national security," and the suspect is detained. The Attorney General need give no reasons or explanations. He can do this on "evidence" he never reveals. Such evidence could be mere implication or hearsay without proof or corroboration.
As the ACLU has said, this sort of "'trust us, we're the government' solution ... is entirely unacceptable."
Furthermore, the government, once it has certified someone as a terrorist or threat to national security under the seven-day holding provision, can then detain the person indefinitely on nothing more than a visa violation.
Once these people are out-of-sight, the government hopes they will be out-of-mind. What makes this worse is that the label of terrorist affixes without any trial or proof of guilt. In other words, the law turns the presumption of innocent-until-proven-guilty upside-down. "Label first; find guilty later," is the new law.
Under these conditions, the question of treatment becomes even more significant.
Unbeknownst to most Americans, claims of torture have arisen repeatedly in U.S. terrorism cases from the 1970s onward. Defendants have made claims that they were subjected to torture at the hands of mercenaries under U.S. control, foreign governments who were acting in collusion with agents of the U.S., or in foreign custody but under the watchful and ostensibly approving eye of FBI agents.
These claims, of course, are not reported in the news, as the civil rights of suspected terrorists naturally do not draw much empathy. Courts are also generally not sympathetic to such claims, and in some cases have even failed to hold evidentiary hearings required by law to determine whether there is any factual basis to the claim. Some, if not most, claims are thrown out for the simple reason that proof of such torture is impossible to come by.*
In a few instances, however, an appeals court has overturned a lower court's verdict, or refused to adjudicate a case, due to a claim of torture.
Did you get that? More than one court has had to throw out a case against a suspected terrorist because there was evidence that our government was involved in torturing him.
This should be an embarrassment to a democratic country. How dare we call ourselves an advanced civilization?
In these cases, the torture was alleged to have occurred outside of the United States, of course. That does not make in any less wrong.
There is evidence that such practices are not isolated to the past era of intelligence agency abuses of the 1950s through the 1970's -- which included government experiments on unwitting adult and children U.S. citizens -- but have continued into the 1990's and beyond. (I personally worked on a case in which a suspect claimed he was tortured for four months by Pakistani military police in 1994 with the knowledge and under the supervision of the FBI. The suspect was convicted, and, to date, as far as I know, no hearing has been held to give the defendant the opportunity to prove his claim or to ascertain its credibility. This is a matter of public record, but who has heard about it?)
The existence of police brutality unfortunately no longer surprises most people, because the cases come out in the media. They come out in the media because victims are Americans who have constitutional rights that have been violated.
But, federal agent brutality is unknown to us because, where it does take place, it only does so in the deepest shadows of overseas covert ops in cooperation with sleazy and abusive foreign governments, and is only directed at foreign nationals. Our government can thus maintain deniability by laying the blame on foreign governments for the torture, and no one has to worry about the rights of the suspect who will be tried in our courts (but who may not yet have even been charged with a crime).
This picture should be a deeply disturbing one to us. Why? Why should we care about how alien terrorist suspects are treated? First of all, because torture is inhumane and wrong.
Secondly, because if the suspect confessed under torture, he may not even be guilty. (Ask yourself, if you were being tortured, would you hesitate to say anything in order to make it stop?) The government may have gotten the wrong guy, which means the real perpetrator remains at large.
Thirdly, because it flies in the face of what a democracy is about.
A fourth reason is that the abuses carried out under these laws may come to be used against us, as well. Remember what happened with the Alien & Sedition Laws? The Alien Act, which was meant to protect Americans from dangerous foreign nationals, was used to keep out of office qualified immigrant citizens. The Sedition Law, purportedly enacted to preserve national security, was used to persecute newspaper editors who dared to oppose the Administration.
Are these the kinds of laws we want to live under? Is this what a democracy is about?
* (It is my belief that evidentiary hearings on claims of torture should use a similar standard as that used in asylum applicant claims of persecution. The asylum applicant is not required to meet the impossible standard of supplying eyewitness testimony or documentary proof of past or probable future persecution in his homeland, and the court may rely on information compiled from credible sources such as international organizations, private voluntary agencies, news organizations, or academic institutions, to corroborate the applicant's testimony. Were this standard applied to torture claims in terrorism cases, a substantiated claim of torture by a suspected terrorist would not per se exonerate him, but would go towards a valid defense. Thus, for example, if it is established that a torture-claiming suspect was held by the authorities of a regime for which Amnesty International has documented torture, the court should determine whether a confession obtained by the FBI immediately after obtaining custody of the suspect - whether or not he supposedly waived his Miranda rights -- should be inadmissible.)
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